Whitney Information v. Xcentric Update

By Eric Goldman

Whitney Information Network v. Xcentric Ventures, 2006 WL 2243041 (11th Cir. Aug 1, 2006)

I previously blogged on this case, where the operators of ripoffreport.com and ripoffrevenge.com won a 230 defense in district court. However, the judge gave the plaintiffs an opportunity to amend their complaint, which they did to allege, in essence, that the website operators wrote various product reviews rather than posting third party reviews. The defendants then moved to dismiss for lack of jurisdiction based in part on an affidavit from the defendants that they didn’t write the reviews. Normally this affidavit would be irrelevant at the motion to dismiss stage, but instead under applicable law, the affidavit prompted a weird and complicated burden-shifting analysis. Based on this, the district court granted the motion to dismiss on jurisdictional grounds.

In this ruling, the appeals court reversed the district court’s granting of the motion to dismiss on jurisdictional grounds. There is some substantive discussion about 47 USC 230 along the way, but the only item of note is that the 11th circuit, reinforcing its dicta from its recent ruling in Almeida v. Amazon case, appears to be laboring under the erroneous assumption that editing third party content would preclude eligibility for the 230 immunization.

There are still other grounds why jurisdiction may be infirm, so this ruling does not mean that the case will advance substantively in this circuit. However, the 11th circuit is in desperate and urgent need of a tutorial on 47 USC 230!